Background

Last week, KFC restaurants published a full-page advertisement in British newspapers to apologize for a chicken shortage that had closed a number of its locations. The ad’s most prominent feature was a KFC chicken bucket with its initials rearranged “FCK”. The ad received wide acclaim on the internet for its candor and informal audience engagement.

Our Advertising & Marketing Law Blog co-editors got together to share their reactions.

AUGUST: When I first saw this ad, I thought it might be a parody. Then I learned it was real, but in the UK. It struck me that this ad could not likely have been published in the United States, at least on a national basis. The reasons are not legal-related. The British actually have more regulation of truthful advertising than the United States does. Last year, for example, the Advertising Standards Authority announced new regulations to ban advertising that promotes gender stereotypes or objectifies women. The ASA previously has taken action against offensive ads, although in general, it uses a light touch with these. For example, in the ASA’s roundup of the top 10 ads of 2016 for which it received the most complaints, all 10 were complained-of on the basis of offensiveness, whereas “over 70% of the complaints we receive are about misleadingness.” The ASA took action against none of these 10 most-complained-about ads, noting dryly, “The ads that attract the highest number of complaints are often not the ones that need banning.” As far as coarse language, the ASA in 2014 updated its standards to identify several vulgar words that it deemed allowable “when targeted appropriately.” The word implied by “FCK,” however, remained in its “Expletives to Avoid” list. Still, given the overall impression of this ad and the fact that KFC used the epithet as an expression of chagrin rather than to attack anyone, I doubt they will have a problem with this ad.

NEIL: This ad is reminiscent of the ubiquitous FCUK logo used not long ago by British retailer French Connection UK. It is arresting, bold, and memorable; yet given the four-letter word that the mark invokes, it also pushes the boundaries of what it deemed appropriate commercial speech. While the British tend to be less prudish about such things, the ASA received plenty of complaints about the FCUK mark and went so far as to require pre-clearance of French Connection poster campaigns for two years after the company released a poster using the FCUK mark to advertise its radio station. The offending message: “Fcuk FM from Pnuk to Rcok and back. Non-stop Fnuk. Fcuk Fm.”

The mark was even more controversial in the U.S. After organizations like the American Family Association and Catholic Parents Online threatened boycotts, many major U.S. retailers pulled FCUK-labeled clothing from their racks.

What’s particularly interesting about the KFC ad is that, unlike French Connection clothing, its customer base in the U.S. veers conservative, especially in the South, where KFC buckets are a staple at church picnics and family gatherings. Like most people, I saw the ad first on social media, which means that even though the ad was local to the U.K., it nevertheless had global reach. It will be interesting to see how the fried chicken enthusiasts at the American Family Association and Catholic Parents Online react to the ad.

From a US legal perspective, the risk of running an ad like this is low. Since the ad was not broadcast on radio or television, the FCC lacks jurisdiction to cast judgment on whether the ad is obscene, indecent, or profane. Obscenity laws are still on the books in many states, but the likelihood of enforcement activity over a tongue-in-cheek ad like this is not very high. As with the FCUK controversy, what matters is how consumers will react.

AUGUST: Well, in terms of worrying about a negative U.S. consumer reaction, it’s useful that the shelf life of this ad is very short. As far as we can tell, it ran in a couple of British newspapers just one day. The social media buzz about it is already dying down. There may not have been time to offend anybody.

The latest I’ve heard is that more trouble for KFC in Britain may be on the horizon. I’m not making this up – the chain changed distribution companies there recently, and may now be facing a gravy shortage.